Supreme Court Refers Petitions Seeking Legal Recognition For Same-Sex Marriage To Constitution Bench

In a significant development, the Supreme Court on Monday referred to a Constitution Bench a batch of petitions seeking legal recognition for same-sex marriages, observing that it was a matter of "seminal importance"

A bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala observed in its order : 

"We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to Article 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench."

The matter has been listed for hearing on 18th April 2023. The bench held a brief hearing of the petitions to have an overview of the issues involved. 

Senior Advocate Neeraj Kishan Kaul, appearing for petitioners, while providing an overview of his arguments stated that either the Special Marriage Act could be harmoniously construed to recognise same sex marriage or the bench could rely on the judgement in Navtej Singh Johar v. Union of India(which decriminalized homosexuality) to recognise same sex marriage in India. He pointed out that Special Marriage Act uses gender neutral terms as its Section 5 says "a marriage between any two persons may be solemnized under this Act".

Solicitor General of India Tushar Mehta, appearing for the Union argued that in its counter, the Union had shown specific sections which applied only to biological men and women. In its counter, the Central government had opposed the legal recognition for same-sex marriage, while stating that the notion of marriage itself necessarily presupposes a union between two persons of the opposite sex.

At this juncture, Senior Advocate KV Vishwanathan, who is representing a transgender person, submitted that the Union's affidavit has not dealt with the Transgender Persons Protection of Rights Act. He added that it was not an issue of mere statutory interpretation but of recognition of rights flowing from the Constitution itself.

"This case is not about a transgender statute or the Hindu Marriage Act. What it is about is Article 21 and Article 19(1)(a). The right of choosing a partner is the right of expression, right of dignity. It's only a natural right, an assertion of a right. It has implications."

Senior Advocate Menaka Guruswamy argued that the legislative object of the Hindu Marriage Act mandated that same-sex marriage be recognised. She argued that Section 5 of the Hindu Marriage Act permitted marriage between “any two Hindus” and that the response provided by the SG was similar to the objections that Dr Ambedkar got in reply to the Hindu Code bill that reformed Hindu marriage by allowing for inter caste or same gotra marriages between two Hindus.

Advocate Arundhati Katju apprised the bench that at least three petitions in the batch have been filed by couples with children.

Dr AM Singhvi, also appearing for the petitioners provided a roadmap of his arguments and said–

"One is philosophical proposition - "Right to love makes us human". It should be extended in equal terms. You can extend it only on equal terms only if your lordships reads down the Special Marriage Act and other acts. It has to be read in such a way that terms such as man, woman are done away with."

Kaul, while relying on the judgments of KS Puttaswamy v Union of India, Deepika Singh v. Central Administrative Tribunal, and Navtej Singh Johar v. Union of India, argued–

"The rights recognised by your lords in these judgements are far beyond the narrow interpretation given to Special Marriage Act."

SG Mehta stated that so far as the right to love or express affection and the freedom of choice was concerned, the same had already been dealt with in the Navtej Singh Johar judgement. He stated that the judgement in Navtej Singh Johar specifically stated that the right of marriage had not been conferred to same-sex couples. The SG also said that after the decriminalisation of Section 377 IPC, there is "no stigma" against the LGBTQ community.

He said that the recognition of same-sex marriage would give rise to other rights, such as adoption, and hence, it is a matter for the Parliament to decide after taking the views of different sections of the society.

"Parliament will have to see psychology of a child who has not been reared by a father and a mother- these are the issues. The parliament will have to debate and take a call on whether in view of our ethos, this can be done."

CJI DY Chandrachud interrupted and said–

"Mr SG, the adopted child of a lesbian or a gay couple need not necessarily be a lesbian or gay."

The batch of petitions challenge the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages. In January, a bench led by CJI DY Chandrachud had transferred to the Supreme Court the petitions pending in High Courts on this issue.

Case Title: Supriyo v. UoI WP(C) No. 1011/2022 PIL

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